Goodbye to the Practice of Law; Indiana Disciplinary Commission Incurred More Expenses Prosecuting Ogden Than Any Other Attorney

When I protested earlier to the Indiana Supreme Court that the Disciplinary Commission deliberately ran up an expense bill on me to force me out of practicing law, I don't think the justices believed me.  So I decided to undergo the painstaking process of going through the docket of each disciplinary case over the last two years to determine how much in expenses each disciplined attorney was ordered to pay.  An order often detailed in a docket entry contains the breakdown of the following types expenses attorneys in disciplinary cases are generally ordered to pay: 

Disciplinary Commission - investigation expenses.
Clerk - court costs
Supreme Court - hearing officer and court reporter expenses.

For the attorneys with the most expenses, I documented the discipline the attorney ended up receiving. There were a few occasions when the dollar amount on expenses was not spelled out or there did not appear to be any mention of expenses in the docket.  It should also be noted that the designation WAR means suspended "with automatic readmission" and WOAR means "without automatic readmission," i.e. attorneys have to reapply for readmission and get approval.  For many attorneys a WOAR designation means they will neer practice law again.

Upon completion of my survey, it turns out my instincts were right.  The Commission ran up more expenses prosecuting me for an email than any other attorney.

Name	DC Inv. Exp.	Clerk-Court Costs	SCT -HO & Ct Rep.	Total	Result
Ogden, Paul K.	5360.34	250	14813.20	20423.50	Susp 30 days WAR
Geller, Steven B.	8465.48	250	7740	16455.50	Disbarred
Haigh, Christopher E.	5549.75	250	9880.2	15680.00	Disbarred
Usher IV, Arthur J.	7026.69	250	4380	11656.70	Susp 3 years WOAR
Denney, Louis W.	4717.1	250	5350	10317.10	Susp 3 years WOAR
Benson, Craig R.	2749.04	250	6871.08	9870.12	Susp 180 days WOAR
Dempsey, Gordon B.	3265.73	250	4125.16	7640.89	Susp 3 years WOAR
Stern, Patrick H	3527.71	250	1933.05	5710.76	Susp 18 mos WOAR
Smith, Joseph Stork	2463.83	250	2008.3	4722.13	Disbarred
Alexander, Michael	243.63	250	3850	4343.63	Susp 60 days WAR
Schalk, David E.	1096.64	250	2953.84	4300.48	Susp 9 mos WOAR
Snulligan, Octavia F.	1527.16	250	2445.35	4222.51	Susp 30 Days WOAR
Coleman, Jesse L.	1003.9	250	2075	3328.90	Not Reviewed
Ross, Roberta	722.63	250	1775	2747.63	Not Reviewed
Cole, Scott C.	2079.2	250	160	2489.20	Not Reviewed
Atkins, Trezanay M.	306.96	250	1910	2466.96	Not Reviewed
Baker, Patrick V.	2250.81	0	0	2250.81	Not Reviewed
Collins, Robert L.	489	250	1425	2164	Not Reviewed
Frazier, Ronald W.	1863.09	250	0	2113.09	Not Reviewed
McClure, Alfred	1092.39	250	440	1782.39	Not Reviewed
Clark, Timothy V.	937.63	250	450	1637.63	Not Reviewed
Heck, Jeffrey D.	688.73	250	690	1628.73	Not Reviewed
Beal, Shane E.	1197.39	250	0	1447.39	Not Reviewed
Kahn, Stanley	1096.8	250	0	1346.8	Not Reviewed
Voils, Alex R.	1082.55	250	0	1332.55	Not Reviewed
Weldy, Ronald E.	982.27	250	0	1232.27	Not Reviewed
Kinnard, Terrence	811.46	250	0	1061.46	Not Reviewed
Jones, Carl C.	679.8	250	0	929.80	Not Reviewed
Devlin, Maureen	210	250	420	880.00	Not Reviewed
Suarez, Edward J. Martinez	540	250	0	790.00	Not Reviewed
Brejensky, Steve L.	36.18	250	458.35	744.53	Not Reviewed
Potthast, Lindsay C.	0	250	469.25	719.25	Not Reviewed
Woodmansee, Todd A.	193.91	250	240	683.91	Not Reviewed
Holcomb Jr., Noah	21.85	250	350	621.85	Not Reviewed
Schrems, Patrick M.	71.2	100	417.64	588.84	Not Reviewed
Randolph, Lonnie M.	133.4	250	185	568.40	Not Reviewed
Criss, Jon A.	0	250	300	550	Not Reviewed
Godshalk, Randy A.	0	250	300	550	Not Reviewed
Wallace III, William R.	288.28	250	0	538.28	Not Reviewed
Stiles, Randall B.	530.55	0	0	530.55	Not Reviewed
Johnson, Amanda	524.44	0	0	524.44	Not Reviewed
Raventos, Peter S.	524.44	0	0	524.44	Not Reviewed
Sokolowski, David J.	524.44	0	0	524.44	Not Reviewed
Stiles, Randall B.	524.44	0	0	524.44	Not Reviewed
Stuard, F. Scott	524.44	0	0	524.44	Not Reviewed
Stuard, F. Scott	524.44	0	0	524.44	Not Reviewed
Weber, Brad J.	524.44	0	0	524.44	Not Reviewed
Roby, Veronica M.	523.72	0	0	523.72	Not Reviewed
Stuard, F. Scott	518.33	0	0	518.33	Not Reviewed
Stoops, Eldon E.	0	250	267.42	517.42	Not Reviewed
Oulette, Steven J.	512.96	0	0	512.96	Not Reviewed
Heck, Jeffrey D.	512.22	0	0	512.22	Not Reviewed
Johnson, Elton D.	512.22	0	0	512.22	Not Reviewed
Lipsky, Michael L.	512.22	0	0	512.22	Not Reviewed
Snulligan, Octavia F.	511.9	0	0	511.90	Not Reviewed
Brenman, Jeremy S.	511.5	0	0	511.50	Not Reviewed
Brenman, Jeremy S.	511.5	0	0	511.50	Not Reviewed
Johnson, John A.	506.11	0	0	506.11	Not Reviewed
Nelson, John W.	0	250	250	500	Not Reviewed
Robson, Ray W.	0	250	250	500	Not Reviewed
Joyce, John M.	38.63	250	210	498.63	Not Reviewed
Followell, Douglas S.	0	100	381	481	Not Reviewed
Auger, Jennifer J.	0	250	155	405	Not Reviewed
Auger, Michael R.	0	250	155	405	Not Reviewed
Stoops, Eldon E.	0	250	143.52	393.52	Not Reviewed
Barker, Joseph B.	140.5	250	0	390.50	Not Reviewed
Aguilar, Marisa	0	250	140	390	Not Reviewed
Hittle, Lori Ann	0	250	104	354	Not Reviewed
Okanlami, Olubunmi O.	0	250	100	350	Not Reviewed
May, Dan J.	91.52	250	0	341.52	Not Reviewed
Hogan, Frank W.	49.59	250	0	299.59	Not Reviewed
Brenman, Jeremy S.	0	250	0	250	Not Reviewed
Carr, Bruce A.	0	250	0	250	Not Reviewed
Compton, Julia N.	0	250	0	250	Not Reviewed
Corbitt, David E.	0	250	0	250	Not Reviewed
Corcella, Ellen M.	0	250	0	250	Not Reviewed
Crawford, Lisa M.	0	250	0	250	Not Reviewed
Eckert, John Carroll	0	250	0	250	Not Reviewed
Eyster, Randy C.	0	250	0	250	Not Reviewed
Freeman, Timothy	0	250	0	250	Not Reviewed
Garcia Jr., Juan Carlos	0	250	0	250	Not Reviewed
Hedges, Christopher c.	0	250	0	250	Not Reviewed
Holajter, Leonard M.	0	250	0	250	Not Reviewed
Holesinger, Clark W.	0	250	0	250	Not Reviewed
Hughes, Mark J.	0	250	0	250	Not Reviewed
Janeway, Kathryn C.	0	250	0	250	Not Reviewed
Kelly, Hubert E.	0	250	0	250	Not Reviewed
Kendall, Michael C.	0	250	0	250	Not Reviewed
Kotz, James C.	0	250	0	250	Not Reviewed
Kotz, James C.	0	250	0	250	Not Reviewed
McGillvrray, Roderick D.	0	250	0	250	Not Reviewed
Mitchner, Kent D.	0	250	0	250	Not Reviewed
Mullisn, Earl C. Jr.	0	250	0	250	Not Reviewed
Murphy, Benjamen W.	0	250	0	250	Not Reviewed
Page, Paul J.	0	250	0	250	Not Reviewed
Rees, David F.	0	250	0	250	Not Reviewed
Scott, David J.	0	250	0	250	Not Reviewed
Smith III, Jess, M	0	250	0	250	Not Reviewed
Storms, Scott	0	250	0	250	Not Reviewed
Truman, Karl N.	0	250	0	250	Not Reviewed
Watson, Mark E.	0	250	0	250	Not Reviewed
Wolfe, Stephen P.	0	250	0	250	Not Reviewed
Wyser, David	0	250	0	250	Not Reviewed
Garvin, Mark A.	115	0	0	115	Not Reviewed

I suspect that the Court thought I was the one who unnecessarily ran up the expense bill.  In reality it was the Commission that did that, no doubt as part of a deliberate strategy.  Evidence?   The Commission wouldn't even respond to my settlement offer (which was nearly the same as the 30 day suspension I ended up receiving) and refused to stipulate to facts even though probably 98% of facts could have been stipulated to.  Instead of a stipulation, the Commission insisted on presenting evidence at an 11 1/2 hour hearing.  The courtroom was filled with DC staffers who apparently were there to assist or watch the spectacle of the Commission's leading critic be put on trial.   Of course, the Commission undoubtedly knew I would be stuck with the bill for the court reporter and the hearing officer.    The Commission undoubtedly also knew I would have to pay for the considerable amount of time the hearing officer  spent preparing the 85 page report, which had very few citations to the record and which contained reasoning that appeared to be completely rejected by the Court.

After receiving the Commission's expense bill following the Court's decision, I asked the Court to reconsider in light of how little of the case the Commission had won and presented a sworn statement that the Commission had never talked to me or my witnesses during the investigatory stage, that I had offered a reasonable settlement offer that would have allowed the proceeding to be resolved early on, and that we had attempted to stipulate to facts to avoid a lengthy trial but the Commission refused.  In short, the vast majority of the expenses were driven by decisions the Commission had made.  I also also asked that the Commission be ordered to itemize the expenses which is expressly required by the rules.

In response, the Commission's attorney, as he had done in the complaint falsely representing to the Court that I had engaged in an ex parte communication in a second charge tossed out by the Court, simply started making stuff up in court filings.  I counted at least three outright fabrications.  The DC attorney claimed that the Commission had been in contact with me following my response to the grievances.  It was a lie.  It never happened.  Second, the DC attorney reported to the Court that the Commission had asked for a settlement meeting with me and that that meeting lasted three hours.  Again, the DC's attorney lied.  It never happened.   Third, the Commission's attorney in the Response reported to the Court that I refused to admit to a rule violation as part of settlement.  Again, another lie.  In the written settlement offer I made, which the Commission didn't respond to, I expressly agreed to admit to a violation.

The Commission's attorney never offered any proof whatsoever in support of these three claims and apparently didn't want to make his false statements the form of an affidavit.  Nonetheless, there is still a disciplinary rule that requires that attorneys show candor to the Court.  I don't believe Disciplinary Commission attorneys practicing before the Indiana Supreme Court should be exempted from following that rule.  Attorneys being disciplined and attorneys prosecuting discipline, should be held to the same ethical standards.

Nonetheless, the Indiana Supreme Court refused to reconsider the expense bill (and didn't require an itemization) leaving me with no choice but to walk away from practicing law.  On Wednesday I filed paperwork to put my license in "inactive" status.

So I, an attorney who had never been disciplined in my over 26 years of practicing law, lost my right to practice law in the State of Indiana because I sent a private email criticizing a judge in which I accidentally got a couple minor facts wrong.  (Never mind NY Times v. Sullivan which says my speech was protected by the First Amendment.)  My hope is that my case FINALLY causes the Indiana Supreme Court to take some responsibility for the too often outrageous conduct of the Disciplinary Commission, which is an arm of the Court, and adopt long needed reforms in how the Commission operates, including more transparency and accountability.  Indiana attorneys and the public deserve better.

Northwest Indiana Officials Trample on the Constitution on Constitution Day

On Constitution Day, no less.  The Northwest Indiana Gazette has this interesting story:

A Hammond man is behind bars tonight being held without bail. 25 year old Kevin Kirby of Hammond posted the following Facebook comment yesterday:

Shortly thereafter, the comment went viral. The Gazette received it from several sources. Today the Gazette has learned that bond for Kirby has been revoked on an unrelated Felony charge. In May of this year, Kirby was charged with resisting arrest as a result of an incident that occurred in Highland. He was out on bond for that offense. After Kirby’s comments went viral, prosecutors quickly moved to revoke his bond on that charge. According to Court documents, Prosecutors faxed a notice of hearing to Kirby’s attorney on September 16. A hearing was scheduled for September 17 but neither Kirby nor his attorney showed. At that time, the Court issued a warrant for his arrest for failure to appear which was quickly executed.

Information as to the nature of the revocation hearing was not available at the time of this article. Presumably, the revocation had something to do with his comments. Nonetheless, the case raises a serious due process issue. There is no indication in the record that Kirby’s lawyer actually received the notice of hearing. Absent actual notice, a failure to appear warrant should not issue absent an imminent and specific identifiable threat. On the other hand, if action was not taken and someone was injured, we may be having a different conversation.

...

My immediate thought was that there is also quite possibly a free speech violation.  Kirby's comment was crass, even reprehensible, but crass and reprehensible comments are still protected speech.  Punishing that speech by revoking one's bond could be considered to be chilling of Kirby's free speech rights in violation of the First Amendment.  

Then, as the Gazette notes, you have the issue of the arrest on a failure to appear for a bond hearing with the notice of the hearing only being given by a faced order to the man's attorney one day before the hearing.   Obviously with such a short notice, it's not surprising that the defendant and the attorney weren't there.   Yes, there could be a due process problem.

It really looks like a bunch of people - police officers, the prosecutor, and judge - exercised extremely poor judgment in overreacting to Kirby's comment.  It might be time too for them to take a refresher course on the Constitution.

Judge's Order Requiring Male Attorney to Wear Socks May Violate the Equal Protection Clause

By now most people have heard about the saga of Todd A. Glickfield, the attorney who was admonished by Dean A. Young, Blackford Circuit Court Judge, for not wearing socks.  In the "Order Directing Proper Attire Be Worn By Todd A. Glickfield," which was distributed to all members of the Blackford County bar, the Judge Young the facts that led to the order:

During a break in the proceedings the Court advised Attorney Glickfield that he was not

Todd A. Glickfield

appropriately dressed as required by Local Rule, and that the Court would insist upon him wearing socks should he choose to present cases in the Blackford Circuit Court in the future.  Attorney Glickfield advised the Court that "I hate socks" and that he's had "this conversation with other judges in other courts," and that unless the Judge of the Blackford Circuit Court could show him applicable "orders or other legal authority" he would continue his habit of appearing sockless in court."

The judge responded by issuing an order detailing the dress code that Attorney Glickfield needed to follow, including that socks be worn.  Most commentators around Indiana and even the country (the story has been picked up nationally) agree, or at least assume, that the judge had the right to set and enforce this dress code in his courtroom. 

But there is a problem.  Rhetorical Paragraph #5 of the order states:

That the Blackford Circuit Court considers socks to constitute a part of "appropriate business attire" for male members of the bar presenting cases before the Court." (emphasis supplied)

In other words, the wearing socks rule doesn't apply to female attorneys who appear in Judge Young's court.

Judge Young may well not be aware of it but earlier this year the Seventh Circuit handed down Hayden v. Greensburg Community Schools in which the Court held a hair length limit enforced by the boy's basketball team violated the equal protection clause when that hair lengthy limit didn't apply to girl basketball players at the school.  In that case, Greensburg Schools pointed out that they were different teams and that if girls played on the boys' team they would be subject to the hair length limit.  That didn't matter to the Seventh Circuit.  Here, the argument of separate teams isn't even available as a defense to the constitutionality of Judge Young's order.  Lawyers, both male and female, appear before the Blackford Circuit Court.

Here is a portion of the Hayden decision:

The Haydens plainly have made out a prima facie case of discrimination. The hair-length policy applies only to male athletes, and there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. Why, then, must only members of the boys team wear their hair short? Given the obvious disparity, the policy itself gives rise to an inference of discrimination. 

The same thing could be said for socks.  There is no reason for treating male and female attorneys differently in terms of wearing socks other than the adopted rule reflects traditional differences in how men and women dress.   Clearly tradition alone is no longer a sufficient reason to treat the genders differently in imposing a dress code, even in a court of law.

Note:  A special thanks to The Indiana Law Blog for putting the Glickfield order online.

Judge's Actions Holding Kokomo Mayor in Contempt Raises Issues Regarding His Abuse of Contempt Power, Lack of Temperament

Over at Masson's Blog, attorney Doug Masson beat me to the punch on writing an article questioning whether Howard County Superior Court Judge William Menges overstepped his legal authority in holding Kokomo Mayor Greg Goodnight in contempt over the issue of construction materials supposedly blocking courthouse access:    WISH-TV recaps what happened:

William Menges, Judge
Howard County Superior Court #1

Outside the Howard County Courthouse there is construction underway on the Industrial Heritage Trail.  The construction has at times forced changes in the normal delivery of jail inmates to the courthouse.

Then, on Tuesday afternoon construction materials were placed in the driveway blocking
access.  To Judge Menges that was an act of contempt by Mayor Goodnight.

He sent the Sheriff to Goodnight’s office with a message.  “If you don’t come with me over to the judge’s chamber,” Goodnight quoted the Sheriff as saying, “we’re going to take you to jail.”

Through a spokesperson the judge said he can’t comment on the record.  His contempt order says the mayor blocked access to the courthouse and says it was “intentional and done solely for the purpose of disrupting the regular proceedings of the court.”

The judge ordered that Goodnight be sent to jail but before he arrived there in a sheriff’s department van, the construction materials were moved.

...

Masson raises a key legal issue:  "Wouldn’t that be, at best, indirect contempt, requiring the court to provide due process, including appointment of a special judge, before threatening to incarcerate the mayor? (See IC 34-47-3)."

Yep, it would certainly appear to be.  I would add that Judge Menges had also become personally involved in the dispute.  He had no business whatsoever presiding over the contempt proceedings. A special judge should have been appointed.  Judges should not rule in indirect contempt cases where they could themselves be a witness to the contempt.   And they most certainly should never preside over cases when they are angry.  When a judge finds himself or herself getting angry, the judge should voluntarily step down from the case.

Masson raises some other excellent questions that he suggests would be a "good exercise for a law school exam!"  Indeed.

But here is part of the WISH-TV story that I find the most troubling:

Judge Menges also threatened a Kokomo newspaper reporter with contempt Tuesday.  The reporter declined comment.

Two years ago the judge found a woman in contempt of court for having a noisy baby in the courtroom, and in 2011, he made headlines by issuing a court order instructing the county auditor to pay for the new copy machine he wanted.

The facts regarding the reporter need to be made public.  That and the other incidents raise the distinct possibility that the Goodnight contempt matter might not just be a one time situation in which Judge Menges displayed extremely poor judgment and abused his contempt authority.  Rather, it appears to be a pattern of abusing power that suggests Judge Menges may well not have the temperament to be a judge.

While Mayor Goodnight talks possible legal action, I would imagine he will also end up filing a  complaint with the Indiana Judicial Qualifications Commission, the body that disciplines the state's judges. Given Judge Menges pattern of conduct, it may well be a complaint that is found to have merit.

Annual Fee for Indiana Attorneys to Increase By 25%; Points to Need for New Chief Justice to Examine Operations of Judicial Agencies Funded by Fee

In an order handed down by the Indiana Supreme Court last month, it was announced that the annual attorney fee for active licenses would increase by 25% from $145 to $180.  These fees go to fund the operation of the Indiana Supreme Court Disciplinary Commission, Judges and Lawyers Assistance Program and the Commission for Continuing Legal Education.  Other fees that also fund those judicial agencies are seeing a similar increase.

Officials immediately patted themselves on the back for having a low attorney annual fee compared to other states. The Indiana Lawyer reports:

Jim Dimos, President,
Indiana State Bar Association

Regarding fees compared to other states, “Indiana is so low that whether we’re counted as lowest or second-lowest is negligible,” [Supreme Court spokeswoman Kathryn] Dolan said. That analysis is tricky, though, she said, because some states include mandatory state bar fees or other fees that Indiana doesn’t.

Even among voluntary bar states, Indiana’s fees are below average, Dolan said. Indiana State Bar Association President Jim Dimos said increases are never popular, but the registration dues remain low compared to states that don’t include mandatory bar fees.

“From our experience at the state bar, the court seems to administer things relatively modestly,” Dimos said. “While no one’s happy about paying more fees, we’re confident the court thought long and hard about this and believes they need these resources to continue to provide services to lawyers in the state of Indiana.”

Of course, none of this praise addresses much needed questions that need to be asked about why the operating costs of these judicial agencies have increased so much as to require a 25% increase even though inflation has been negligible since the last increase in 2011.

I can give Dolan a pass.  She's just a spokeswoman doing her job.  However, you would think Dimos, as President of the Indiana State Bar Association, might actually stand up for the attorneys his organization represents and question the need for such a large increase while many attorneys, especially younger attorneys saddled by huge law school bills, are struggling financially.  Not unexpectedly though, the bar association once again fails to advocate for attorneys, which is exactly why so many attorneys don't join the association.

Let me do Dimos' job for him.  The problem is that these judicial agencies, in particular the Disciplinary Commission have not controlled their costs and prioritized their activities.  This past year we have witnessed the Commission spending enormous amounts of money in zealous, overreaching efforts to pursue attorneys on minor violations unrelated to protecting the public from dishonest attorneys.  Meanwhile attorneys who have committed extremely serious ethical lapses or even are convicted off felonies, go unpunished by the Commission of have their prosecutions delayed for months if not years.

This is a fact I know all too well.  The Disciplinary Commission spent over $20,000 in their extremely aggressive prosecution of me for criticizing a judge in an email.  That's the entire disciplinary fees paid by 142 attorneys.  And that figure is expenses only, i.e. it does not count the salaries of the attorneys and scores of employees at the Commission who worked on my case.  My prosecution wasn't about my being an unethical attorney.  It was a prosecution that was filed and zealously pursued because I had publicly criticized the Commission on my blog, including Executive Secretary Michael Witte. During later filings, the Commission all but admitted that fact when it asked for a one year suspension for me in part because I had publicly criticized the Commission on my blog.

I'd like to say the way my prosecution was pursued was unique.  But repeatedly we have seen a Disciplinary Commission exercise such poor judgment in the prosecutions the Commission chooses to pursue and how those prosecutions are pursued, that the Commission has drawn editorial criticism of legal blogs and scholars across the country.  Even non-legal publications have written critically of the activities of the Commission.

Chief Justice Loretta Rush

Yesterday we saw the swearing in of a new chief justice, Loretta Rush of Lafayette.  As reported by Indiana Politics, Chief Justice Rush identified reform in Marion County of the small claims courts and judicial selection process as goals of her new administration.  I applaud that much needed focus of reform efforts and have written about those subjects several times.  I hope too that she will take a close and comprehensive look at the operations various judicial agencies for which the Indiana Supreme Court is responsible.  The operations of the Disciplinary Commission in particular need to be reviewed and major reforms instituted, reforms that help the Commission reprioritize so its primary task is protecting the public from dishonest attorneys.  There also needs to be much more transparency in the disciplinary process.

Most importantly attorneys need to have the opportunity to provide feedback about their experiences with the Commission to the Chief Justice in a confidential manner.  Right now attorneys across the State are fearful that if they dare publicly criticize the Commission, and virtually every attorney does privately, they will become on the Commission's radar and have their legal careers jeopardized.  As someone who has experienced the wrath of the Commission for speaking out publicly against it, I know that retaliation from the Commission is a real possibility for any attorney taking the route I did of speaking out about the need for reform in the disciplinary process.